Supreme Court upholds homeless camping ban

Laws that ban people from sleeping or camping outside do not violate the Eighth Amendment's prohibition against cruel and unusual punishment, the U.S. Supreme Court ruled Friday in a case that reversed two decisions by the 9th U.S. Circuit Court of Appeals.

Justice Neil M. Gorsuch, an appointee of President Donald Trump, wrote for a 6-3 majority in favor of the city of Grants Pass, Oregon. The decision pleased California Gov. Gavin Newsom, San Francisco Mayor London Breed and leaders of other cities and counties on the West Coast that have grappled with an expanding homeless population and filed amicus briefs in the case.

Gorsuch's ruling was limited to the Eighth Amendment, leaving other questions in litigation between cities and homeless plaintiffs unresolved.

"The Cruel and Unusual Punishments Clause focuses on the question what 'method or kind of punishment' a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense," Gorsuch wrote. City of Grants Pass, Oregon v. Johnson, 2024 DJDAR 6000 (S. Ct., filed Aug. 22, 2023).

The court ruling was split along partisan lines, but many Democratic elected officials in California - who have panned the 9th Circuit decision in Grants Pass and an earlier ruling in Martin v. City of Boise, 2018 DJDAR 8871 (9th Circ., filed Oct. 29, 2015) -- backed the Oregon city's appeal and hailed the decision.

"Today's ruling by the U.S. Supreme Court provides state and local officials the definitive authority to implement and enforce policies to clear unsafe encampments from our streets," Newsom said in a statement. "This decision removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities."

The decision is a win for Gibson, Dunn & Crutcher LLP partner Theane D. Evangelis, who argued for Grants Pass before the justices in April and hailed the ruling in a statement.

"Today, the U.S. Supreme Court delivered urgent relief to the many communities that have struggled to address the growing problem of dangerous encampments," she wrote. "For the past six years, the 9th Circuit's decisions have tied the hands of local governments. The Court has now restored the ability of cities on the frontlines of this crisis to develop lasting solutions that meet the needs of the most vulnerable members of their communities, while also keeping our public spaces safe and clean."

Ed Johnson, director of litigation at the Oregon Law Center - who represented the homeless plaintiffs who challenged the constitutionality of the Grants Pass statutes because the city did not have adequate shelter space - criticized the decision while noting during a press conference that it did not address several provisions, including whether fines for violating them were excessive.

"We are disappointed that a majority of the Court has decided that our Constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive the cold when there is nowhere else for them to go," he said.

The ruling may impact pending litigation between cities trying to enforce anti-camping statutes and homeless plaintiffs.

U.S. Magistrate Judge Donna M. Ryu issued a preliminary injunction blocking enforcement of the San Francisco ordinances that relied in part on the 9th Circuit decisions in Martin and Grants Pass. Coalition on Homelessness et al. v. City and County of San Francisco, 22-CV-05502 (N.D. Cal., filed Sept. 27, 2022).

Breed voiced optimism that the Supreme Court ruling will allow the city to enforce its anti-camping laws but attorneys for the homeless plaintiffs said its impact would be limited.

"We will continue to fight to ensure that San Francisco follows the law and its own policies in safeguarding the rights and property of unhoused residents," said Nisha Kashyap, program director of Racial Justice at the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. "This includes upholding critical Fourth Amendment rights to be free from property destruction by the government."

UC Berkeley School of Law Dean Erwin Chemerinsky said in email that Gorsuch's opinion "does not discuss the Fourth Amendment or due process or excessive fines." While the court expressed a desire to defer to state and local governments to deal with homeless issues, everything but the Eighth Amendment still must be "litigated in the lower courts and perhaps ultimately in the Supreme Court."

Ilan Wurman, an associate professor at the University of Minnesota Law School who praised the Supreme Court decision, said it "removes one obstacle to enforcing camping bans: cities can no longer use the 9th Circuit decisions as an excuse to refuse to enforce the laws."

But he said public nuisance lawsuits to force some cities to act may be necessary.

In his ruling, Gorsuch wrote that he was unpersuaded by arguments made by lawyers for the homeless plaintiffs and the Biden administration that a 1962 U.S. Supreme Court ruling - Robinson v. California, 370 U.S. 660 - should apply to homeless residents who face civil fines and criminal penalties if they sleep outside.

"In Robinson, the Court expressly recognized the 'broad power' States enjoy over the substance of their criminal laws, stressing that they may criminalize knowing or intentional drug use even by those suffering from addiction," he wrote. "The Court held only that a State may not criminalize the 'status' of being an addict."

"Public camping ordinances like those before us are nothing like the law at issue in Robinson," Gorsuch added.

While plaintiffs argued that the 1962 case should be extended to block enforcement of statutes that proscribe acts that homeless individuals cannot help but undertake, such as camping outside because they have no place to stay, he argued the court already rejected that in a 1968 case involving a Texas man's conviction for being drunk in public.

Gorsuch cited the plurality opinion of Justice Thurgood Marshall, an appointee of President Lyndon B. Johnson, which affirmed the conviction on a splintered court. Powell v. Texas, 392 U.S. 514 (1968).

Justice Sonia M. Sotomayor, an appointee of President Barack Obama who wrote for the court's three Democratic appointees, said the Grants Pass statutes violate the Eighth Amendment. The city "jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow," she wrote.

"It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles," Sotomayor added. "Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested."

Sotomayor said the majority "misunderstands Robinson," arguing that the point of the Grants Pass ordinances is to criminalize homelessness. She denied the 1962 decision conflicts with Powell.

"The ordinances' purpose, text, and enforcement confirm that they target status, not conduct," she wrote. "For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether."

Martin and Grants Pass both marked rare splits between many Democratic elected officials and appellate judges appointed by Democratic presidents. The 9th Circuit last year rejected a bid to reconsider a three-judge panel's decision for the homeless plaintiffs over the objections of all 13 active appointees of Republican presidents on the court. All, or all but one, 9th Circuit judge appointed by a Democratic president ruled against Grants Pass.